States largely have authority over when to shut down, reopen

By MARK SHERMAN, WASHINGTON (AP)

Under our constitutional system, states have the power and responsibility for maintaining public order and safety.

(President Donald Trump gestures to a chart as he speaks about the coronavirus with Dr. Deborah Birx, White House coronavirus response coordinator, left, and Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, right, in the James Brady Press Briefing Room of the White House, Tuesday, March 31, 2020, in Washington. AP Photo: Alex Brandon)

President Donald Trump has the biggest megaphone, but it’s governors and local officials who will decide what type of restrictions to impose on their citizens to try to slow the spread of the coronavirus. The Constitution largely gives states the authority to regulate their own affairs.

Trump has left guidelines limiting social interaction in place until the end of this month, after initially pushing April 12, Easter, as as the date to begin reopening the U.S. economy. Trump was moved by public health experts who showed him death tolls of 100,000 with strict measures in place, and hundreds of thousands of deaths more without. Initially, concerns were over states unwilling to open up by Easter, but now, the friction is over certain states unwilling to issue shutdown orders and calls for the president to issue a nationwide lockdown.

Some questions and answers about the legal authority for shutting and reopening the U.S. economy.

___Q. Does the president have the authority to override state and local orders?

A. No. Under our constitutional system, states have the power and responsibility for maintaining public order and safety. As we’ve seen since the outbreak began, decisions about limiting social interactions by ordering people to shelter in place, closing businesses and shutting schools are being made by governors and local officials. Those same officials will make the call about when to ease up. Trump’s comments “are just advisory,” said John Malcolm of the Heritage Foundation.

An increasing number of states have ordered all nonessential businesses and schools to close at least until the end of April. “This battle is going to be much harder, take much longer, and be much worse than almost anyone comprehends. We have never faced anything like this ever before, and I continue to urge the people of our state to stay in place at home and stay safe,” Maryland’s Governor Larry Hogan said recently.

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Q. But the president has set a period until the end of April in which all Americans are being urged to drastically scale back their public activities. Doesn’t that amount to a national order?

A. No. The guidelines are voluntary, and they underscore the limits on Trump’s powers. He can use daily briefings and his Twitter account to try to shape public opinion, and he has not been reluctant to do so. “When Donald Trump selects a narrative and begins to advance it, especially through his Twitter account, it has a remarkable effect on those who trust him,” said Robert Chesney, a University of Texas law professor wrote on the Lawfare blog. Florida Gov. Ron DeSantis has resisted calls to shut down the entire state, issuing orders only in four Florida counties, and said during a news conference Tuesday he’d consider a stay at home order if it were specifically recommended by the White House.

A. Yes, he has. The Stafford Act allows the expenditure of tens of billions of dollars in emergency assistance. The Defense Production Act allows the president to direct private companies to produce goods or acquire raw materials. Trump has yet to actually order companies to do anything, over the objection of some local officials who have a desperate need for ventilators, masks and other equipment. But Trump can only assert powers that Congress has specifically given him. “There are real limits on the president and the federal government when it comes to domestic affairs,” John Yoo, a University of California at Berkeley law school professor, said on a recent Federalist Society conference call. At the same time, the federal government has the power, under laws aimed at preventing the spread of communicable diseases, to quarantine people when they arrive in the United States and travel between states.

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Q. Is it clear that state and local governments have authority to impose the severe restrictions we’ve seen?

A. Lawsuits already are challenging state actions on religious grounds and as seizures of property for which the government must pay compensation. But for more than 100 years, the Supreme Court has upheld states’ robust use of their authority, even when it restricts people’s freedoms. In 1905, the court rejected a Massachusetts pastor’s complaint that he should not be forced to get a smallpox vaccine or pay a fine, Malcolm noted.

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Q. But we’ve seen the federal government curtail the public before, notably during World War II when people of Japanese descent, including U.S. citizens, were put into internment camps, wasn’t that the same?

A. President Franklin Delano Roosevelt used an executive order that designated certain areas as military zones to make camps. The Supreme Court in 1944 did uphold the internment in its notorious decision in Korematsu v. United States as a “military necessity” that was not based on race. In 2018, the court formally overruled Korematsu (even as it upheld Trump’s travel ban on people from several mainly Muslim countries. ) “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,”’ Chief Justice John Roberts wrote.

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